PEOPLE v. ARREOLA

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Alfonso Sergio ARREOLA, Defendant and Appellant.

No. H009913.

Decided: June 29, 1993

Thomas F. Thurlow, Palo Alto, under Appointment by the Sixth District Appellate Program, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supervising Deputy Atty. Gen., Jeff Bryant, Deputy Atty. Gen., for plaintiff and respondent.

Defendant's probation was revoked and a state prison term was imposed after a hearing at which a transcript of defendant's preliminary hearing in another action was admitted as evidence that defendant had violated his probation.   Defendant claims that the court prejudicially erred in admitting the preliminary hearing transcript.   We agree.

FACTS

Defendant was convicted of felony drunk driving (Veh.Code, § 23152, subd. (b)) and driving with a suspended license (Veh.Code, § 14601.2, subd. (a)).  He was placed on probation.   During the probationary period, defendant was charged by felony complaint with driving under the influence, evading an officer, resisting arrest and other offenses based on conduct which occurred while defendant was on probation.   The complaint notified defendant that “any evidence presented at a preliminary hearing in the instant case will be used not only as a basis for a holding in this case but also as a circumstance for a violation of probation and, at any formal hearing on that violation of probation, the People will move the transcript of the preliminary hearing into evidence as a basis for the violation.”  (Emphasis added.)   The arresting officer was the only prosecution witness at the preliminary hearing.   Defendant was ultimately convicted of resisting arrest (Pen.Code, § 148) and evading an officer (Veh.Code, § 2800.1).

At the subsequent probation revocation hearing, the prosecution introduced the preliminary hearing transcript as evidence of defendant's probation violations.   Citing People v. Winson (1981) 29 Cal.3d 711, 175 Cal.Rptr. 621, 631 P.2d 55 defendant objected to the admission of the transcript.   He asserted that the transcript was hearsay which could not be admitted without a showing of the officer's unavailability or “good cause.”   Since no such showing had been made, the transcript was inadmissible.   The prosecutor claimed that preliminary hearing transcripts were generally admissible at probation revocation hearings.   She pointed out that the witness had been cross-examined at the preliminary hearing.   The court made no finding of good cause but admitted the transcript into evidence over defendant's objection.1  Based in part on the preliminary hearing transcript, the court found that defendant had violated his probation.   It revoked defendant's probation and imposed a two year state prison term.   Defendant filed a timely notice of appeal.

DISCUSSION

Defendant asserts that the court's admission of the preliminary hearing transcript at his probation revocation hearing resulted in a denial of due process.   The U.S. Supreme Court has delineated what process is due at a probation revocation hearing.   The minimum requirements of due process include the right to present witnesses and documentary evidence and “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).”  (Morrissey v. Brewer (1971) 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484;  Gagnon v. Scarpelli (1973) 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656, accord Black v. Romano (1985) 471 U.S. 606, 612, 105 S.Ct. 2254, 2258, 85 L.Ed.2d 636.)   However, due process is not denied by the use, “where appropriate”, of “the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.”  (Gagnon v. Scarpelli, supra, 411 U.S. at p. 783, fn. 5, 93 S.Ct. at p. 1759, fn. 5.)

“The issue of whether former testimony may be utilized in lieu of a witness' personal appearance [at a probation revocation hearing] is best resolved on a case-by-case basis.”  (People v. Winson (1981) 29 Cal.3d 711, 719, 175 Cal.Rptr. 621, 631 P.2d 55.)   In Winson a preliminary hearing transcript was admitted over objection at a probation revocation hearing.   On appeal, the probationer asserted that the admission of the preliminary hearing transcript at his probation revocation hearing was a denial of due process.   The California Supreme Court agreed.  “A preliminary hearing transcript of a witness' testimony in a defendant's related criminal case is not a proper substitute for the live testimony of the witness at defendant's probation revocation hearing in the absence of declarant's unavailability or other good cause.”  (People v. Winson, supra, 29 Cal.3d at pp. 713–714, 175 Cal.Rptr. 621, 631 P.2d 55, emphasis added.)

 “Former testimony” is ordinarily admissible under an exception to the hearsay rule and does not violate the defendant's confrontation rights where (1) the declarant is unavailable as a witness and (2) the party against whom the evidence is offered “was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.”  (Evid.Code, § 1291;  Ohio v. Roberts (1980) 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597.)   Each of these two requirements for admission of “former testimony” protects a component of the defendant's right of confrontation.

 The right of confrontation has two components which are of equal value.  (People v. Winson, supra, 29 Cal.3d at p. 717, 175 Cal.Rptr. 621, 631 P.2d 55.)   The first component is the right to have the trier of fact observe the demeanor of the witnesses during their testimony and the second component is the right to cross-examine adverse witnesses.  (Ibid.)  The unavailability requirement for the admission of former testimony protects the first component of the right of confrontation.   Invasion of the defendant's constitutional right to have the trier of fact observe the demeanor of the witness is allowed only if the prosecution shows that the admission of the former testimony in place of live testimony is necessary.  (Ohio v. Roberts, supra, 448 U.S. at p. 65, 100 S.Ct. at p. 2538.)   The second component of the right of confrontation is protected by the requirement that the prosecution show that the defendant had an adequate opportunity for meaningful cross-examination at the prior proceeding.   This requirement ensures that the former testimony is reliable because it has been subjected to the test of cross-examination.  (Ibid.;  People v. Winson, supra, 29 Cal.3d at p. 717, 175 Cal.Rptr. 621, 631 P.2d 55.)   The prosecution bears the burden of establishing both of these predicates to the admission of former testimony.  (Ohio v. Roberts, supra, 448 U.S. at pp. 74–75, 100 S.Ct. at pp. 2543.)

 Because probation revocation hearings are more flexible and informal than criminal trials, former testimony, such as a preliminary hearing transcript, may be admitted without a showing that the witness is legally unavailable if the court expressly finds “good cause.” 2  (People v. Winson, supra, 29 Cal.3d at pp. 713–714, 717, 719, 175 Cal.Rptr. 621, 631 P.2d 55;  Morrissey v. Brewer, supra, 408 U.S. at p. 489, 92 S.Ct. at p. 2604.)  “Good cause”, like unavailability, refers to the necessity of introducing former testimony rather than live testimony.   While the prosecution is not held to the strict standards of “unavailability”, it must still make some showing of “necessity” to justify the admission of a preliminary hearing transcript over a defendant's objection.   If obtaining the witness's presence at the probation revocation hearing would be difficult because of some factor outside of the prosecution's control, the revocation court may properly find that “good cause” supports admission of a preliminary hearing transcript.   Whether “good cause” justifies the admission of a preliminary hearing transcript, is a determination which, as the California Supreme Court explained in Winson, can only be made on a case-by-case basis by the revocation court.  (People v. Winson, supra, 29 Cal.3d at p. 719, 175 Cal.Rptr. 621, 631 P.2d 55;   Morrissey v. Brewer, supra, 408 U.S. at p. 489, 92 S.Ct. at p. 2604.)

 A straightforward application of these principles to defendant's contention reveals that his claim is meritorious.   In light of the notice given in the complaint, defendant cannot claim that he was denied the right to cross-examine the witness since he had that opportunity at the preliminary hearing.   However, no notice could justify denying defendant his right to have the trier of fact observe the demeanor of the witness.   This right may be invaded only where the prosecution makes a showing of good cause.   The court made no finding of good cause and the record contains no evidence whatsoever which could support a finding of “good cause.”   In the absence of “good cause”, admission of the preliminary hearing transcript violated defendant's right to procedural due process.   The Attorney General urges that the admission of the preliminary hearing transcript was harmless error.   We disagree.   Two of the four probation violations alleged in the petition were found true.3  One of the allegations found true was that defendant had operated a vehicle without a valid license.   This violation was supported by evidence other than the preliminary hearing transcript.   The other allegation found true by the trial court was that defendant had driven under the influence and resisted and evaded an officer.   This violation was based on the preliminary hearing transcript and on defendant's misdemeanor convictions of resisting and evading an officer.

The revocation court's error in admitting the preliminary hearing transcript violated defendant's right to due process under the federal constitution.   The violation of this right can be deemed harmless only if we can find beyond a reasonable doubt that the preliminary hearing transcript did not influence the court's decision to revoke defendant's probation.  (Chapman v. California (1967) 386 U.S. 18.)   While the resisting and evading convictions, along with the finding that defendant had operated a vehicle without a license, would be sufficient to justify revocation of defendant's probation, we are unable to conclude that the revocation court would have revoked defendant's probation in the absence of the preliminary hearing transcript.   The driving under the influence allegation was the most serious probation violation alleged.   The main issue at the revocation hearing was whether this allegation was true, and only the preliminary hearing transcript bore on this allegation.   Since the erroneous admission of the preliminary hearing transcript resulted in a true finding on the central and most serious alleged probation violation, we cannot conclude beyond a reasonable doubt that the error did not influence the revocation court's judgment.   Consequently, reversal is required.4

CONCLUSION

The judgment is reversed.   The matter is remanded for a new probation revocation hearing which shall be conducted in a manner consistent with the views expressed herein.

FOOTNOTES

1.   The court specifically noted that it was relying on People v. Santellanes (1989) 216 Cal.App.3d 998 “at page 1004”, 265 Cal.Rptr. 281 in admitting the transcript.  Santellanes has no bearing on this issue.   In Santellanes a unitary proceeding before a single trier of fact served as both the preliminary hearing and the hearing to determine whether the defendant had violated his probation.  (Id. at p. 1004, 265 Cal.Rptr. 281.)   Consequently, the defendant was not deprived of his right to have the trier of fact observe the demeanor of the witnesses.   The same cannot be said where the preliminary hearing transcript is introduced at a subsequent hearing.

2.   The foundational requirements for the admission of hearsay evidence are flexible not only with respect to “former testimony” but also in connection with the admission of “documentary hearsay evidence.”   (People v. Maki (1985) 39 Cal.3d 707, 709, 217 Cal.Rptr. 676, 704 P.2d 743, emphasis added.)   In Maki the California Supreme Court held that an inadequate showing that the evidence fell within an exception to the hearsay rule did not require the exclusion of receipts bearing defendant's signature from a car rental agency and a hotel located at Chicago's O'Hare Airport which were admitted at the defendant's probation revocation hearing to show that defendant had violated his probation by travelling out-of-state without his probation officer's permission.Even though the foundational showing was insufficient to justify admission of the receipts under the business records or adoptive admissions exceptions to the hearsay rule, the receipts could be admitted at the defendant's probation revocation hearing because the receipts were records of the type which are ordinarily relied upon by the parties to the transaction and each receipt bore defendant's identified signature.   Applying the analysis set forth in Winson, the Maki court concluded that these facts established appropriate circumstances for the admission of the receipts.  (Id. at pp. 710, 714, 717, 217 Cal.Rptr. 676, 704 P.2d 743.)  Maki did not criticize or impugn the analysis applied in Winson.

3.   The trial court found not true allegations that defendant had failed to verify (1) his participation in a drug and alcohol program and (2) his enrollment in a residential treatment program.

4.   If, upon remand, the prosecution concludes that it can obtain revocation of defendant's probation without proving the driving under the influence allegation, the prosecution may proceed on the other allegations at a new probation revocation hearing.   On the other hand, the prosecution is not precluded from proceeding on the driving under the influence allegation either by showing good cause for admission of the preliminary hearing transcript or by producing other admissible evidence in support of that allegation at a new probation revocation hearing.

MIHARA, Associate Justice.

PREMO, Acting P.J., and ELIA, J., concur.